In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 02-1412

ANNIE GODOSKI,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 99 CR 696—Elaine E. Bucklo, Judge.

____________

ARGUED SEPTEMBER 9, 2002—DECIDED SEPTEMBER 23, 2002

____________

Before EASTERBROOK, KANNE, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge. Prosecuted jointly for

bank fraud, Annie Godoski and her husband William both

pleaded guilty. Each was sentenced to 366 days’ imprisonment. With the prosecutor’s consent, the district court

deferred the start of Annie’s term until 60 days after the

end of William’s, so that one of the two always would

be available to care for the couple’s son. After William’s

release, and with her own incarceration looming, Annie

asked the district court to “commute” her term; on being

informed that only the President may commute a sentence, and that district judges lack authority to reduce

terms they have imposed, see Fed. R. Crim. P. 35(a), Annie

asked the court to issue a writ of error coram nobis to an-
2 No. 02-1412

nul her conviction—because, she contends, ineffective assistance of counsel led to her guilty plea. She observes

that one lawyer represented two defendants, which she insists worked to her disadvantage. But cf. Mickens v. Taylor,

122 S. Ct. 1237 (2002). The district judge did not address

the merits of this contention, however, ruling instead that

coram nobis is not available to one who has yet to begin

serving a sentence—and that 28 U.S.C. §2255 likewise

is unavailable because Annie allowed more than a year

to pass after her conviction became final before filing a

collateral attack.

Annie does not dispute the district court’s conclusion

that a petition under §2255 would be untimely. Although

§2255 ¶6(4) allows one year from “the date on which the

facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence”, she

does not try to take advantage of this opportunity. Her

claim is ignorance not of any material fact but of the oneyear deadline itself (and ignorance of the legal significance of the fact that one attorney represented both Annie

and William). Ignorance of the law does not justify an extension of the one-year period to commence a collateral

attack. See Wilson v. Battles, No. 01-4336 (7th Cir. Sept. 10,

2002); Owens v. Boyd, 235 F.3d 356, 359 (7th Cir. 2000).

Nonetheless, Annie’s new lawyer contends, coram nobis

supplies a route around the time limit. The one-year period in §2255 ¶6 applies only “to a motion under this section”—and coram nobis rests on the All Writs Act, 28 U.S.C.

§1651, rather than on §2255.

One problem with this position is that coram nobis is

used only in those rare situations when the defendant is

no longer “in custody” (rendering §2255 unavailable) yet

collateral relief remains imperative to deal with lingering civil disabilities. See United States v. Bush, 888 F.2d

1145 (7th Cir. 1989); United States v. Keane, 852 F.2d 199

(7th Cir. 1988). A person whose incarceration lies in the
No. 02-1412 3

future is in custody and has full access to §2255. See

Hensley v. Municipal Court, 411 U.S. 345 (1973); Maleng

v. Cook, 490 U.S. 488, 493 (1989). The premise of coram

nobis is unsatisfied.

Counsel insists that coram nobis should be available

more broadly and may be used whenever no other relief

is available. Yet coram nobis is a common-law writ, and

it is entirely inappropriate for the judiciary to invoke the

common law to override limitations enacted by Congress,

such as the period of limitations in §2255. The Supreme

Court made exactly this point in Carlisle v. United States,

517 U.S. 416 (1996), another case in which a criminal

defendant who missed a deadline tried to use coram nobis

to obtain relief belatedly. The Justices replied:

“[t]he All Writs Act is a residual source of authority

to issue writs that are not otherwise covered by

statute. Where a statute specifically addresses the

particular issue at hand, it is that authority, and

not the All Writs Act, that is controlling.” Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 43 (1985). As we noted

a few years after enactment of the Federal Rules of

Criminal Procedure, “it is difficult to conceive of a

situation in a federal criminal case today where [a

writ of coram nobis] would be necessary or appropriate.” United States v. Smith, 331 U.S. [469], at

475, n. 4 [(1947)]. In the present case, Rule 29 provides the applicable law.

517 U.S. at 429. In Carlisle the deadline was set by Fed. R.

Crim. P. 29, and here it was set by §2255 ¶6. The effect

on coram nobis is identical, as we held in Owens, 235 F.3d

at 360.

Our point is not that the period of limitations in §2255

¶6 applies to claims under other federal statutes. That

would be inconsistent with Felker v. Turpin, 518 U.S. 651
4 No. 02-1412

(1996), which held that statutory scope must be respected,

and that 28 U.S.C. §2244(b), which limits successive

petitions in the district court under §2254, therefore

does not foreclose original petitions in the Supreme Court

under §2241 (though the Court said in Felker that its

exercise of discretion under §2241 would be guided by

the criteria in §2244(b)). The point, rather, is that after

Carlisle it is not possible to change the source of authority to grant relief by changing the caption on a piece

of paper. To say that a claim arises under §1651 does not

make it so, any more than calling a donkey’s tail a “leg”

gives the animal five legs. No matter what its caption, a

motion is under §2255 if it falls within the description

of §2255 ¶1. That’s the implication of Carlisle and the

holding of Romandine v. United States, 206 F.3d 731 (7th

Cir. 2000), and United States v. Evans, 224 F.3d 670 (7th

Cir. 2000), which concluded that prisoners cannot avoid

restrictions added to §2255 in 1996 by the Antiterrorism

and Effective Death Penalty Act by captioning their papers under Fed. R. Crim. P. 33 rather than §2255. A postconviction filing that fits the description of §2255 ¶1 is a

motion under §2255, and subject to its restrictions, no

matter what the pleader says. See also, e.g., Calderon v.

Thompson, 523 U.S. 538, 553-54 (1998) (motion to recall

mandate); Dunlap v. Litscher, No. 02-1960 (7th Cir. Sept. 6,

2002) (collecting authority) (motion under Fed. R. Civ. P.

60(b)).

Paragraph 1 of §2255 reads:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right

to be released upon the ground that the sentence

was imposed in violation of the Constitution or laws

of the United States, or that the court was without jurisdiction to impose such sentence, or that

the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
No. 02-1412 5

attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

That description covers the papers Annie Godoski has filed.

She is in custody and seeks relief from a criminal sentence on the ground that it was imposed in violation of

the Constitution because her lawyer rendered ineffective

assistance. So her claim arises under §2255, is untimely,

and was properly dismissed.

AFFIRMED

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-97-C-006—9-23-02